Divorce as a substantive gender-equality right

This Article—the first half of a diptych that continues with Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming April 2020)—draws on the insight that the position of women in society is nowhere better reflected and constituted than in a nation’s personal status laws. Contemporary feminist and constitutional scholars have devoted much attention to how the laws of marriage affect women’s status in society, but they have largely ignored the potential for divorce to vindicate gender equality norms—and many have overlooked recent political and legal developments that threaten to substantially restrict dissolution rights. This diptych seeks to fill in the academic void in feminist and constitutional scholarship by developing the constitutional argument for divorce as a gender equality right. Recognizing that there are competing conceptions of what constitutional gender equality means, the thesis is that every interpretation of equal protection must guarantee a right of unilateral, no-fault exit from matrimonial chains. This Article establishes the status of marital freedom as a gender-equality right under various substantive visions of constitutional equality. The subsequent Article, Divorce as a Formal Gender-Equality Right, 22 U. PA. J. CONST. L. (forthcoming April 2020), establishes the status of marital freedom as a gender-equality right under a formal understanding of constitutional equality. To expose the gender-equality implications of divorce law, this diptych unearths the lineage and function of divorce restrictions as gender-status regulation and outlines the gender-specific burdens they impose on women. It further unveils contemporary attempts to restrict divorce as reflecting impermissible status-based judgments about women’s capacities, roles, and destinies. All in all, this diptych concludes that divorce restrictions coerce women to perform the work of wifehood without altering the conditions that continue to make such work a principal cause of their subordination. This makes unilateral no-fault divorce a fundamental right for women attempting to navigate the world as equals and an imperative for a constitutional system committed to disestablishing gender hierarchy.